법률행위로 인한 관습법상 법정지상권 폐지와 법정임대차 도입

The abolition of the customary superficies and the adoption of the statutory lease– A study on the Draft of the Civil Code Amendment –

The Korean Civil Code (hereinafter “KCC”), which was first enacted back in 1960, is a fundamental norm governing legal relationships among private entities. Since the enactment of the KCC, Korean society has experienced drastic changes in various aspects. However, the KCC has never been comprehensively amended up to now. Against this backdrop, there has been a constant call for the comprehensive amendment of the KCC. In response, the Ministry of Justice has carried out an ambitious legal project of amending the KCC since 2009. As of January 2014, the final amendment draft is about to be completed. This article aims to address major changes envisaged in the draft specifically concerning the abolition of the customary superficies. Customary superficies, according to the legal precedents, endows a building owner the right of superficies even without agreement with a land owner or relevant legal provisions creating such superficies under certain conditions. The main function of this customary right is to protect public interest inherent in the existence of a building. When the ownership of land and the building thereon, once attributed to the same owner, belong to different owners due to whatever legal reasons including sale or public auction, the building owner can claim the right of customary superficies against the land owner so long as there is no contract to tear down the building. This is specific legal device to protect building owner in a jurisdiction where the ownership of land and a building can be separated. The customary superficies was first acknowledged in 1916 by Chosun High Court. Since then, there has been much debate over whether or not such custom had existed in Korea. In particular, there has been heavy criticism on conferring too strong right to a building owner in case of sale when she could have made a contract with a land owner to secure relevant right to use land. This led to the current draft, which abolishes the customary superficies in case of sale, while converting the customary superficies in case of public auction into legal superficies by creating additional provisions to that effect. In the case, the statutory lease contract will be acknowledged for 10 years after the ownership over land and a building belong to different owners. This provides interim protection for a building owner, but not as formidable as customary superficies. It remains to be seen whether or not this draft will finally be enacted in the near future. Yet, the draft itself is certainly worthy of being reviewed from an academic point of view even before its enactment.